| Siony v Siunykalimi |
| 2014 NY Slip Op 05531 |
| Decided on July 30, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 30, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
MARK C. DILLON
JOSEPH J. MALTESE
BETSY BARROS, JJ.
2014-00516
(Index No. 14562/12)
v
Rahim Siunykalimi, etc., et al., respondents; Shirin Siony, counterclaim defendant-appellant.
Goldberg & Rimberg, PLLC, New York, N.Y. (Robert L. Rimberg and Mindy Kallus of counsel), for plaintiffs-counterclaim defendants-appellants and counterclaim defendant-appellant.
Alan J. Firestone, Brooklyn, N.Y. (Andrew S. Fisher of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, the plaintiffs-counterclaim defendants and the additional counterclaim defendant appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated November 26, 2013, as denied that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss the second counterclaim, which alleged that they breached a fiduciary duty to the defendants.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the opposing party the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Mazzei v Kyriacou, 98 AD3d 1088, 1089; Cerciello v Admiral Ins. Brokerage Corp., 90 AD3d 967, 967; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704). Here, accepting all factual allegations as true and according the defendants the benefit of every possible favorable inference (see CPLR 3211; Leon v Martinez, 84 NY2d 83), the defendants' second counterclaim sets forth in sufficient detail (see CPLR 3016[b]) facts which, if proven, would show that the plaintiffs-counterclaim defendants and the counterclaim defendant owed a fiduciary duty to the defendants and breached this duty (see Appleton Acquisition, LLC v National Hous. Partnership, 10 NY3d 250, 258; Birnbaum v Birnbaum, 73 NY2d 461; Chiu v Man Choi Chiu, 71 AD3d 621, 623; Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418; Friedman v Dalmazio, 228 AD2d 549, 549-550; cf. Faith Assembly v Titledge of N.Y. Abstract, LLC, 106 AD3d 47).
SKELOS, J.P., DILLON, MALTESE and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court